Article 1073
Grandparents who can afford it have the obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them.
Grandchildren who can afford it have the obligation to support their grandparents who have died or whose children are unable to support them.
I. Purpose of this Article
This article regulates the obligation of maintenance and maintenance between grandparents and grandchildren.
II. Evolution of the Provisions
Grandparents and grandchildren are direct blood relatives of the next generation, and there is generally no legal obligation to raise or support them. The original Marriage Law of 1950 did not stipulate the obligation of grandparents and grandchildren to raise and support each other. However, with the development of society, based on various factors such as traditional customs, kinship feelings, real living conditions and social security, the original Marriage Law of 1980 stipulated that grandchildren and grandchildren should bear the obligation of raising and supporting each other under certain conditions. Article 22 of the original Marriage Law of 1980 stipulates that "grandparents who can afford it shall have the obligation to support their minor grandchildren whose parents have died." Grandchildren who can afford it have the obligation to support their grandparents who have died. Articles 24 and 25 of the original Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of Civil Policy and Law, promulgated on August 30, 1984, further explain this. Article 24 of the Opinions stipulates: "In accordance with the spirit of Article 22 of the Marriage Law, grandparents who can afford it have the obligation to support their minor grandchildren who are deceased by one parent, the other parent is truly incapable of raising them, or both parents have lost the ability to support them. Article 25 stipulates: "A grandchild who can afford it shall have an obligation to support his or her grandparents who have died or whose children are truly unable to support them." "When the original Marriage Law was amended in 2001, the relevant content of the judicial interpretation was absorbed, and the provisions of Article 22 of the original Marriage Law of 1980 were supplemented and improved. Article 28 of the former Marriage Law, as amended in 2001, stipulates that "grandparents who can afford it shall have the obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them." Grandchildren who can afford it have the obligation to support their grandparents who have died or whose children are unable to support them. Compared with Article 22 of the original Marriage Law of 1980, the provisions of "minor grandchildren and grandchildren whose parents are unable to support them" and "grandparents and maternal grandparents whose children are unable to support them" have been added.
This provision is basically a continuation of the content of the original article 28 of the Marriage Law, as amended in 2001. Compared with article 28 of the original Marriage Law of 2001, only minor adjustments have been made to the text, and there are no obvious substantive changes: the word "or" has been amended to "or", and the word "of" in the phrase "minor grandchildren" has been deleted to make the wording smoother. In addition, there are no other changes to this article.
3. Interpretation of Provisions
This article is about the denial of paternity and the confirmation of paternity.
1. Denial of paternity
The denial of paternity is also called the denial of legitimate children, which is a system in which the father or mother presents negative evidence against the legitimacy of the presumed legitimate child, overturns the proof of the presumption of legitimacy, and denies that the child is legitimate. The premise for denying paternity is the presumption of legitimate children, that is, the child is conceived or born by the biological mother during the existence of the marital relationship, and the child is presumed by law to be the child of the biological mother and the husband of the biological mother, that is, all children born by the woman during the existence of the marriage relationship are directly recognized as legitimate children. The presumption of legitimate children is actually the presumption of the child's father during the duration of the marriage relationship, and the determination of the identity of the legitimate child, rather than by blood relationship, so there is a possibility of error and can be rebutted by objective facts. The law allows interested parties to file a lawsuit for denial of legitimate children, reversing the presumption of legitimate children. If the parent has evidence to prove that the legitimate child was born out of wedlock, he or she may present evidence to the court to deny paternity.
The constitutive elements of the denial of a legitimate child are: (1) the person who has the right to deny the legitimate child must be qualified, (2) there must be a presumption of legitimate child, and (3) there must be an objective fact of denying the legitimate child. If the court confirms that the child was born out of wedlock, the parent-child relationship can be denied, and the relationship of rights and obligations between the father and the child no longer exists. Such denial is generally made by the husband, but there are also cases where the wife denies that the child born to her is the legitimate child of her husband.
2. Confirm paternity
Confirmation of paternity, also known as adoption of an illegitimate child, refers to the act of a biological father acknowledging an illegitimate child as his father and adopting it as his own child. There are two types of child claims born out of wedlock.
(1) Voluntary adoption, also known as voluntary adoption, is a separate act of the biological father, without the consent of the illegitimate child or his mother, and the expression of the father's will is sufficient. The right to claim is vested in the father, not to other members of the father's family. The nature of this right is a right of formation, and in principle there is no restriction on the exercise of this right. The right of claim can be exercised directly or by a court decision confirming the existence of a paternity/daughter relationship.
The constituent elements of the right of claim are: first, it must be claimed by the biological father of the illegitimate child himself. Second, the child must be born out of wedlock, and third, there must be a de facto father-son/daughter relationship between the claimant and the person being adopted.
(2) Compulsory claim, also known as the search for parenting, refers to the act of requesting the court to determine the existence of the child/daughter relationship for the biological father who should be claimed but is not claimed. Compulsory adoption is applicable to the situation where the biological father evades the responsibility of claiming, and the mother and son/daughter request to claim it, and the state intervenes with the power of the state, which reflects the coercive power of the state. When the father does not claim it arbitrarily, the illegitimate child and other legal representatives may appeal to the father to claim it on the basis of the facts.
The fact of compulsory claim is sufficient to be proved by factual evidence of a father-and-daughter/biological relationship with the biological father. After the claimant is required to make a claim for claim, the other party shall adduce counter-evidence to prove that the claim request does not exist, otherwise the compulsory claim can be confirmed.
Once an illegitimate child is adopted, it is deemed to be a legitimate child, and the relationship of rights and obligations between the father and the child arises. Regardless of whether it is arbitrary or compulsory, it will have the above effect. An illegitimate child and the spouse of the biological father, and the illegitimate child of the mother and the spouse of the biological mother, are all related by marriage, and there is no blood relationship between the parents and the children.
4. Cases
Shen v. Ji, a dispute over child support
Facts: Ji and Shen Xiao were legally husband and wife, and gave birth to Shen during the existence of the marital relationship. The results of the judicial appraisal showed that there was a biological blood relationship between Ji and Shen, and there was no biological blood relationship between Shen Xiao and Shen. Shen appealed to the court to confirm the parent-child relationship between him and Ji, and demanded that Ji pay him child support from birth to the age of 18. The court of first instance held that the judicial appraisal opinion submitted by Shen proved that there was no biological blood relationship between Shen Xiao and Shen, and that Ji did not have any other contrary evidence sufficient to refute it, and it was presumed that Shen's claim was established. Based on the parent-child relationship between the parties, Ji should have paid Shen for the maintenance expenses until he had the ability to live independently. Ji was dissatisfied with the first-instance judgment and appealed. The court of second instance held that the facts found in the original judgment were clear, the law was correctly applied, and the substantive handling was appropriate, and should be upheld.
5. Analysis
According to Article 2 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, Shen has the right to request confirmation of the parent-child relationship between him and Ji Jia. Confirmation of the existence or absence of a parent-child relationship is important for both parents and children. For parents, the existence or absence of a parent-child relationship directly affects the fulfillment of their legal obligations to raise and care for their children; The focus of this case is whether there is a parent-child relationship between Shen, Ji and Shen Xiao. Since Shen was able to prove that there was a biological blood relationship between him and Ji, but not between him and Shen Xiao, and Ji did not have any other evidence to the contrary that could be rebutted, according to Article 2, Paragraph 2 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China, it should be presumed that there was a biological blood relationship between Shen and Ji, so Ji, as Shen's father, should pay the maintenance expenses for raising Shen until he had the ability to live independently.